Saharawi government response to the withdrawal of a defence in the case of a cargo of phosphate rock detained en route to New Zealand from occupied Western Sahara

Bir Lehlu Western Sahara

13 July 2017

The government of the Saharawi Arab Democratic Republic (the SADR) and the Saharawi national liberation movement, the Polisario Front, welcomed an announcement today that there would be no further defence of a case by Morocco’s state company OCP SA over a cargo of phosphate mineral rock detained under court order in South Africa.

The 55,000 tonne cargo had been illegally exported from occupied Western Sahara in April for delivery to the New Zealand fertilizer company Ballance Agri-Nutrients Limited. Carried aboard the m.v. NM Cherry Blossom, it was detained on May 1 under a civil court order after an application by Saharawi authorities in South Africa’s High Court. On June 15, the Court determined that the claim should proceed to a full trial, noting that the Saharawi government had prima facie ownership of the cargo. A copy of the decision in Saharawi Arab Democratic Republic and Another v Owner and Charterers of the MV ‘NM Cherry Blossom’ and Others [2017] ZAECPEHC 31 is available at: <www.saflii.org/za/cases/ZAECPEHC/2017/31.html>.

In its decision, the Court noted that “OCP and [its subsidiary company] Phosboucraa do not claim to have mined the phosphate in Western Sahara with the consent of the people of the territory. They do not and cannot claim to do so on behalf of its people. Their claim to mine phosphate for the benefit of the people is disputed by the SADR and the [Polisario Front]: as most of the Sahrawi people live to the east of the berm or in refugee camps in Algeria, those who may benefit from the mining of phosphate are not the ‘people of the territory’ but, more likely, Moroccan settlers.”

The SADR government recognizes the withdrawal of what would have been an untenable defence as a helpful step, both for ensuring clarity of what the High Court has determined on abundant evidence and as a contribution to the application of the rule of law in the continuing occupation of Western Sahara and a denial to its people of the right of self-determination.

The SADR senior official responsible for the case, Emhamded Khadad, explained: “It is unfortunate that the Moroccan company made remarks which denigrate the South African High Court. Such statements are contemptible and unworthy of a state owned company that otherwise seeks the protection of the law in its commercial dealings. South Africa’s courts are universally regarded for their independence and sophistication. Tarnishing a court’s reputation in the giving-up of a hopeless defence of stolen property is a sad thing to do.”

The SADR government also welcomed the pending resolution of the case in the context of the m.v. NM Cherry Blossom being able to return to trade. “Our government has been clear from the start to hold out the prospect that cargo – and ship – could sail away from South Africa after a posting of security for the Saharawi claim to ownership”, explained Khadad. “This is how things are worked out in maritime law cases. But neither OCP nor Ballance Agri-Nutrients would respond. And so the ship has stayed anchored at Port Elizabeth for more than 70 days.”

The SADR government continues to explore the interdiction of phosphate rock and fisheries cargos in other states, and how historic claims against certain phosphate purchasing companies and shipping carriers will next be pursued.